Supreme Court of the RF recognized the legality of taxpayer debt collection from its related person

At the end of November 2015 the Russian Federal Tax Service submitted the decision of the Supreme Court of the RF from 02.11.2015 on the case №А40-153792/2014 to local inspections and departments, in which the court recognizes as lawful the recovery of taxpayer's debt from its related party by a tax authority. This decision is recommended for use by all bodies of the tax control in order to enhance the efficiency of the collection of tax arrears.

According to the general principle, a taxpayer must fulfill the obligation to pay tax on her/his own, and compulsory collection of tax arrears is carried out from a taxpayer-debtor. However, in the case of interrelated relationships between companies, the tax debt can be recovered in a court of law not only from a debtor itself, but also from related parties or its participants.

The procedure, regulating the recovery of unpaid tax from related persons, has been introduced since July 30, 2013 in a new version of paragraph 2 of Article 45 of the Tax Code of the RF.

In its turn, the definition of interdependence of parties is established in Article 20 of the Tax Code of the RF. As a general rule, for tax purposes the individuals or organizations, the relationships between which can affect their operating results, are recognized as related persons. In particular, the organizations directly or indirectly involved in other companies with a total share of such participation of more than 20% may be recognized as related parties. 

In cases of indirect participation, the shares of the participation of one company into another are defined as follows:

1. all direct sequences of participation of each previous organization in each subsequent are determined;

2. the shares of direct participation are calculated;

3. the product of direct participation is calculated. 

In addition, the individuals are recognized as related parties, who are subordinate to each other on an official position or are in marital relationships or in relationships of kinship, in accordance with the family legislation of the Russian Federation.

Otherwise, only in a court of law, the persons, the relations between which may affect the results of transactions of selling goods, works or services, may be recognized as related parties.

As to the above mentioned decision of the Supreme Court of the RF, its essence reduces to the following: in the result of field tax inspection of a taxpayer there was exposed a significant tax in default and it was decided to collect debts from a related person. The court recognized as a proven the fact of interdependence and affiliation of companies on common founder and General Director, single virtual address, contact phones, website and the type of activity. Accordingly, it was proved a set of conditions, under which the recovery of tax debt is carried out from a dependent person.

To protect yourselves from «unexpected» recovery of funds in similar situations will help the service «Links» of the Information and analytical system Globas-i®, allowing you identify related persons among counterparties quickly and with minimum expense.